Political discussion and ranting, premised upon the fact that even a stopped clock is right twice a day.

Thursday, June 28, 2012

A Broccoli Tax Instead of a Broccoli Mandate?

Greg Sargent quotes a law professor on the Roberts Court's apparent expansion of Congress's authority to regulate through taxation:

Barry Friedman, a New York University law professor who wrote a brief supporting Obamacare, argued that by affirming the ability to regulate with taxing power, the decision created a precedent for future regulation along these lines.

“They can’t make you eat broccoli, but they can tax you for not eating it,” Friedman joked, by way of summarizing the meaning of the decision. This is, of course, a reference to what Jonathan Bernstein has called the Broccoli Tyranny argument....

“This is far more devastating to federalism and the balance of power between states and the national government,” he says. “You can now tax pretty much anything.”

I think Friedman is correct in his description of the logical consequences of Roberts' opinion but something tells me that, were squarely before the Court, Roberts and the dissenters - for that matter, perhaps all 9 justices - would have no difficulty distinguishing a "broccoli tax" on the grounds that the rare and compelling circumstances surrounding health care and health insurance don't exist in relation to broccoli.

"But," you protest, "Wouldn't that approach betray that the entire broccoli argument was specious from the outset?" Yes, it would. But Roberts' didn't let his embrace of the slippery slope - his treatment the "broccoli mandate" as a genuine possibility as opposed to a reductio ad absurdum of the opposition's argument - get in the way of his approval of the mandate as a tax. There's no reason to believe he won't invoke the slippery slope the next time a similar tax question comes before the court. Or he could choose a better approach, embracing the argument that the unique aspects of the healthcare market can justify or necessitate measures that would not be permitted in other contexts. Either way he gets at least five votes.